457 Temporary Work Visa

457 Temporary Work Visa

The government has announced it intends to abolish this visa in March 2018 and replace it with a new visa for temporary workers.

Before these changes take effect the current visa still exists although the government has made some significant changes which prevents people doing certain occupations from using this visa as a pathway to permanent residency in Australia.

Two lists of occupations have been created:

the Short-Term Skilled Occupation List (STSOL); and

the Medium and Long-Term Strategic Skills List (MLTSSL)

If you work in an occupation that is listed on the Short-Term Skilled Occupation List (STSOL), you can only get a 457 visa on a temporary basis (2 years – though you can get it renewed once for another two years). Importantly, if your occupation is on this list, you cannot get your employer to then sponsor you for a permanent work visa that will give you permanent residency (PR) in Australia.

If you work in an occupation that is listed on the Medium and Long-Term Strategic Skills List (MLTSSL), you can get a 457 visa for a period up to 4 years. If your occupation is on this list, it is possible to move to a permanent work visa after working for your employer for 3 years – providing your employer is willing to sponsor you. if you get a permanent work visa you will have permanent residency (PR) in Australia.

New Temporary Skilled Shortage (TSS) visa in March 2018

In March 2018 the 457 visa will be replaced by the Temporary Skilled Shortage (TSS) Visa. This new visa will have two separate streams – one could lead to permanent residency, the other will not. The following is a summary of the new streams:

Short Term Stream – No permanent residency possible in this stream

This visa is a genuine temporary work visa.

It is meant for businesses that want to employ foreign workers on a temporary basis only.

After the visa expires you will have to leave Australia.

There is no option for a business to eventually sponsor you on a permanent work visa if you are in this stream.

This means that you will not be able to move from this visa to another employer-sponsored work visa that gives you permanent residency in Australia.

This visa will be granted for only two years but can be renewed for another two years (so 4 years at most).

To get this visa you will:

have to work in anoccupation on theShort-Term Skilled Occupation List (STSOL).

have an English Language score of IELTS 5 with a minimum of 4.5 in each test component (or its equivalent in another English language test).

Have the required qualifications and two years’ work experience in your occupation

The sponsoring business will have to:

undertake Labour Market Testing (LMT) unless the worker is from a country with which Australia has a trade agreement

make a financial contribution to a government fund for training Australian workers

Medium Term Stream – pathway to permanent residency possible from this stream

This visa will give you up to 4 years in Australia

This visa is a temporary work visa but your employer has the option of sponsoring you for a permanent work visa after three years

Moving from this visa to a permanent employer-sponsored visa will give you permanent residency in Australia

To get this visa you will:

have to do an occupation on theMedium and Long-Term Strategic Skills List (MLTSSL)

have an English Language score of at least IELTS 5 in each test component (or its equivalent in another English language test).

Have the required qualifications and two years’ work experience in your occupation

The sponsoring business will have to:

undertake Labour Market Testing (LMT)unless the worker is from a country with which Australia has a trade agreement

make a financial contribution to a government fund for training Australian workers

How do I get into the stream that could lead to permanent residency?

It depends on your occupation. If your occupation is listed on the Short-Term Skilled Occupation List (STSOL), your only option is the short-term stream. From this stream you cannot have your employer eventually sponsor you for a permanent work visa.

If your occupation is listed on the Medium and Long-Term Strategic Skills List (MLTSSL), then you could eventually get apermanent work visa which will give you permanent residency (PR) in Australia. Of course, this depends on whether your employer is willing to sponsor you for the permanent work visa.

What do you suggest?

To determine how these changes affect you we would have to look at your particular situation in detail to give you advice. These changes have effectively prevented people doing certain occupations from using the existing 457 visa or the new Temporary Skilled Shortage (TSS) Visa as a pathway to eventual permanent residency in Australia.

Whether the existing 457 Visa or the new Temporary Skilled Shortage (TSS) Visa to be introduced in March 2018 are an option for you depends on your occupation. It also depends on your qualifications and work experience, and on whether you can find an employer to sponsor you.

If you are now prevented from using the 457 or the new visa as a pathway to permanent residency in Australia, it may be that another visa is an option; for example, a visa that requires you to work in a regional area of Australia.

Below we list the various requirements for the existing 457 visa along with notes setting out how these requirements will change with the new Temporary Skilled Shortage Visa in March 2018:

English Language Requirement

Most applicants will need to a sit an English test and get an overall score of at least 5 in the IELTS English Language test, or the equivalent score in another accepted English language exam.

You may be exempt from the language requirement if any of the following apply:

You hold a passport from the UK, USA, Canada, New Zealand, or Ireland

You will be earning more than a base salary of $96,400

You have completed five years of full-time study in a secondary or higher education institution and all tuition was in English

Skills, qualifications, and/or work experience

You will need to have the required skills, qualifications and/or work experience to get this visa. However, for many occupations work experience can be used as a substitute if you don’t have a formal qualification. This means that if you have been working in the same occupation in your own, or another, country, for at least a few years, and have evidence of this, then this may substitute for your lack of formal qualification. Another advantage of this visa is that in most cases you won’t need to do a formal skills assessment with a skills assessing organisation unless you are interested in applying for a trades occupation, in which case, you may need to pass a skills assessment.

You can satisfy the skills requirement if any of the following apply:

you have an Australian qualification at the necessary level which is relevant to the occupation; or

you have a qualification from your own, or another country, and it is deemed to be equal to the Australian qualification required; or

you have adequate work experience and can prove this with detailed work references from previous employers in addition to other evidence of work experience in the occupation

Including family members in your application

You are able to include the following family members in your application:

spouse or de facto partner (de facto can be same sex)

the dependent children under 18 and single of either partner (and their dependent children)

dependent children of either partner over 18 years’ old who are single and at the very least substantially reliant on the head of the family for food, clothes and shelter, or who are financially reliant and unable to work due to mental or physical incapacitation

and certain dependent relatives of either partner who are single and usually resident in the household and substantially reliant on the main family member

Health Issues

You and your family members may have to complete certain health exams. Whether these are necessary depends on such things as your country, your intended activities in Australia, and whether these could involve you in entering a hospital or childcare centre, and whether you or your family members have significant health issues.

If you or any family member included in your application have significant health issues these will have to be considered before proceeding with the visa application. The government makes an economic assessment of the condition, and if they consider likely costs to be significant, the person will fail the health requirement. What is considered ‘significant’ is complex and in certain circumstances a health waiver is available, but this should be addressed up front before proceeding.

Must be of good character

You and any family members included in the application must pass the character test. If there are issues of concern in terms of criminal history or certain behaviours in other countries, then these will have to be considered before proceeding with the visa application. Depending on the circumstances, it may be possible to get a waiver but this issue should be addressed up front before proceeding.

Heath Insurance

You and any family members included in the application must have the required health insurance before the application is submitted.

Application Process

The process to get this visa is made up of the following three steps:

Step 1

Business Sponsorship: First, the business applies to become a Standard Business Sponsor. It supplies evidence that it has a legitimate legal structure and financial and other evidence to show it is actively trading.

The business also has to show it has made a contribution towards the training of Australians.Providing the business satisfies these requirements, it will generally be given approval to sponsor an employee, or employees, for a period of three years.

Step 2

Business Nomination: The business selects an occupation from one of the Skilled Shortage Lists. It prepares a nomination application and submits it to the Department of Immigration nominating the occupation and declaring that it needs a person to undertake this occupation within its business.

It shows that it has genuine reasons for needing to hire a person in this position in the business, and that there is a genuine need within the business for a person to perform the specific duties of the occupation it has selected from relevant skilled occupation lost.

For example, if the business is nominating the occupation of Accountant, but based on the information supplied the case officer assessing the application at the Department of Immigration notes that the business is reasonably small and there is already an accountant working in the business, and that the actual duties of the role within the business are those of an Accounts Clerk rather than an Accountant, then the nomination will be refused. The refusal reasons may be that the business does not have a genuine need for another accountant given its size, and that given the specific duties it needs performed, it does not need an Accountant but an Accounts Clerk, and it has selected the wrong occupation.

The business must also be willing to pay the employee above a base salary level of $53,900. This is called the Temporary Skilled Migration Income Threshold or TSMIT.

The business also has to provide evidence that the terms and conditions of employment are the same terms and condition that an Australian citizen or permanent resident doing the same job in the same location would expect. An important part of this is showing that the intended salary is the market salary for that particular position in that location. This is to prevent employers sponsoring a person simply because the person will work for less money in return for the visa, or work longer hours than normal, and to prevent businesses in any way exploiting the person they intend to sponsor.

Just to be clear, the salary has to be both above $53,900 in addition to being within the normal range of salaries for that occupation in that particular area.

For certain occupations the business has to provide evidence of having first attempted to fill the vacant position in the local labour market. This is called Labour Market Testing. However, there are many exemptions from this requirement. Whether the business is required to do this depends on the skill level and country of the visa applicant. In many instances it is not necessary.

Step 3

Visa Application:The final step is that, you, the visa applicant, applies for the position the business has nominated. The case officer at the Department of Immigration will check that the evidence you have provided in terms of qualifications and/or work experience is adequate for the occupation that the business has selected

If registration, or licensing, is required to perform this occupation in Australia, you must either have this registration or licensing, or are eligible to get it.

The case officer will also check that you have the required English level for this visa, and that you have the necessary health insurance.

What we do

If we think you have a reasonable chance of getting this visa, and the business has a reasonable chance of approval as a sponsor and of making a case for needing a person to perform the required occupation, we work through the following steps to prepare the various applications:

Step 1

We work with the sponsoring employer to collect the necessary documents that prove the business is legitimate and actively trading, and advise the business on the best way to meet the training obligation.

Step 2

We prepare the sponsoring employers’ nomination application. This involves selecting the correct occupation from the skills shortage list, and collecting the necessary evidence to prove that the business genuinely needs a person to perform this occupation in the business.

We prepare a written submission to accompany the evidence explaining to the case officer the nature of the business, the nature of the position and how it fits within the business, and an explanation of why the salary the business is paying the employee is reasonable for the position and is consistent with salaries paid to Australians doing the same job in the same area.

The case officer assessing the application at the Department of Immigration will consider the written submission, the supporting evidence, and either make a decision, or request further information or clarification. Our aim is to provide the case officer a convincing argument supported by an adequate amount of convincing evidence. Doing this increases the chance of approval. If the case officer is satisfied all the criteria have been addressed and the need seems legitimate, the case officer will approve the nomination.

Step 3

Now we prepare your visa application. We make sure you have the required qualification and/or work experience for the nominated position, and that the evidence you are relying on to prove this is sufficient. We advise you on how to arrange the necessary English language test if you haven’t done one yet. There are various other things to arrange and information we will need to get from you. When everything is ready, we submit your visa application.

Although we list these steps separately, in reality we prepare all the applications at the same time.

Can you guarantee the business will be approved and I will get the visa?

No. It is impossible to guarantee a result, and no ethical migration agent would provide a guarantee. It is possible that a carefully prepared application is still refused.

A certain amount of subjectivity is involved in an assessment. The case officer assessing your visa applications at the Department of Immigration will follow the laws as set out in the Migration Act 1958 and the Migration Regulations 1994, and a set of associated guidelines that accompanies this legislation, and will apply them to your application.

However, a case officer still has a reasonable amount of discretion during their assessment.

What you can do is limit your chances of refusal and increase your chances of approval by addressing any potential issues the case officer may find problematic upfront, providing as much quality evidence as possible to prove your claims and having well-written submissions prepared that explain how everything fits together.